Understanding the Legal Ramifications of Using Physical Force

written by Binghamton New York Police Sergeant Scott Patrick

As martial artists, we continuously practice and train in our art, not only for our own enjoyment, physical fitness and mental well-being, but also to provide us with the means and ability to defend ourselves and our loved ones from physical harm. While it is important for us to strive to perfect and understand the techniques involved in self-defense, it is equally important for us to understand the legal ramifications of utilizing our skills in the defense of ourselves or others. Given our society’s propensity toward frivolous and baseless lawsuits, there is no way to effectively protect against becoming the respondent in a civil action. There is, however, a way for us to protect ourselves against criminal action should we be forced to use our training in an actual self-defense situation. That way is by gaining a basic working understanding of the laws governing the use of physical force.

The laws governing the use of physical force vary from state to state however, since most of the students of our dojo live and work in New York State; we will concern ourselves with Article 35 of the New York State Penal Law, Justification of the Use of Force. The first and most important point that must be understood is that Article 35 authorizes the use of physical force under certain circumstances. It does not mandate the use of force, and the decision (and responsibility) for the use of force ultimately lies solely with the user.

Simply stated, Article 35 authorizes two classes of people to use physical force:

1.      Police or peace officers (which we will not discuss here);
2.      Private citizens.

It also provides for the use of physical force in the protection of three things:

1.      People;
2.      Real Property (land or structures); and
3.      Personal Property.

 Article 35 specifies four time frames when the use of force is authorized:

1.      Prevent – to keep an act from occurring;
2.      Terminate – to stop an act already in progress;
3.      Arrest – the act has been completed, and you are taking the perpetrator into custody;
4.      Prevent Escape from Custody – after the suspect is in custody, he tries to get away.

 The final consideration addressed in Article 35 is NECESSITY:

1.      Is the use of physical force necessary?
2.      How much physical force is necessary?

   Although not specifically addressed in Article 35, the final, and possibly the most important, consideration is SAFETY. Before using physical force in any degree to resolve a situation, you must be sure that your use of force will not endanger innocent people.

   Therefore, in order to determine whether force is justified, or what degree of force is justified, you can think of it in terms of a mathematical equation

    TIME FRAME            (Prevent, Terminate, Arrest, or Prevent Escape)
+  CRIME                        (What crime do you believe has occurred, is occurring, or is about to occur?)
+  NECESSITY                (Is force necessary? How much is necessary?)
+  SAFETY                       (Will the intended use of force endanger innocent people?)
=  AMOUNT OF FORCE

USE OF PHYSICAL FORCE: SPECIAL CIRCUMSTANCES

            Although much of Article 35 is written in broad terms to include a variety of situations, there are certain special circumstances addressed in Article 35 in which the use of physical force is specifically authorized. Some of these circumstances included in this are:

1. “The lesser of two evils” – you can use physical force if it will result in less injury than if you fail to use force. An example of this would be pushing someone out of the path of a speeding car.

2. Parent, guardian or person entrusted with the care and supervision of a minor for a special purpose may use reasonable physical force to maintain discipline or to promote the welfare of such minor. This allows for parents, guardians, and teachers to employ corporal punishment as a form of discipline, but it does not allow them to cause injury, leave bruises, or to administer extended beatings.

3. Officials of a jail, prison, or correctional institution may use physical force to maintain order and discipline as authorized by corrections law.

4. A person responsible for maintaining order on a common carrier, such as a bus driver, train conductor, or airline crewmember, may use physical force when necessary to maintain order, and may use deadly physical force if necessary to prevent death or serious physical injury. This also applies to any private citizen designated by such person to assist in maintaining order.

5. Anyone acting under the reasonable belief that another person is about to commit suicide or inflict serious physical injury upon himself may use physical force to prevent the suicide or the self-inflicted serious injury.

6. Licensed physician or person acting under his direction for the purpose of administering a recognized form of treatment with the consent of the patient, his parent or guardian may use physical force (but may still face civil liability). Consent is not required in emergency situations where failure to act would result in greater injury to the patient.

The special circumstances specifically described in Article 35 can be easily remembered with this memory aid:
DOCTOR WARDEN TRAINS SUICIDAL PARENTS.

USE OF PHYSICAL FORCE: GENERAL RULES

The other instances when the ordinary citizens can employ physical depend upon the legal standard of reasonable cause to believe (RCTB). RCTB simply means that the average person, possessed of normal powers of observation and rational thought, would reasonably infer that a person is, has or is about to commit the act in question based upon that person’s behavior. Besides RCTB, one must also consider what the time frame is in regard to the act in question. Anyone can use physical force to prevent or terminate (P/T):

1. The use of physical force against yourself (self-defense) or another, unless:
1. You provoked the incident with the intent of injuring the person or a third party;
2. You provoke the incident and the other person defends himself, unless you clearly communicate your withdrawal and he pursues you to continue the fight; or
3. You are engaged in an unlawful fight by mutual agreement (two people “step outside to settle things”)
2. P/T a person from committing a crime involving damage to premises, such as criminal mischief (vandalism) or minor arson.
3. P/T a larceny or criminal mischief to property, such as personal property or automobiles.
4. P/T criminal trespass upon premises that you are in control of or privileged to be at, such as your home, the homes of family and friends, your place of employment, or other locations where you enjoy similar rights and privileges.

The ordinary citizen may use physical force to arrest or prevent escape from custody (A/PE) under the following circumstances:

1. An offense you know to be a misdemeanor or a felony is committed in your presence; or

2. You have RCTB a misdemeanor or a felony was committed AND IN FACT was committed by the person you are detaining; or

3. You are directed by a police or peace officer to assist him in effecting an arrest or detaining a suspect.

USE OF DEADLY PHYSICAL FORCE BY PRIVATE CITIZENS

Additionally, there are circumstances in which the ordinary citizen is authorized to use deadly physical force (DPF) against another person. Deadly physical force is defined as that force which is likely to result in death or serious physical injury to subject of that force. Again, these circumstances are dictated by RCTB as well as time frame. You are justified in using deadly physical force when you have RCTB it is necessary to prevent or terminate:

1.   The use of deadly physical force against yourself or another person, UNLESS you can avoid the necessity to use deadly physical force by retreating with complete safety to yourself and innocent bystanders. You are under no obligation to retreat under the following circumstances:  

• You are in your own home and you are NOT the initial aggressor; or
• You are acting at the direction of a police or peace officer UNLESS you know he does not have the authority to use deadly physical force under the current circumstances.

2.   P/T the following crimes or attempts to commit them

• Robbery (forcible theft of property from a person)
• Burglary of an occupied building or of a dwelling (unlawful entry with intent to commit a crime therein)
• Arson of a dwelling or an occupied building
• Rape (forcible)
• Kidnapping
• Sodomy (forcible)

In order to remember when deadly physical force is authorized to prevent or terminate the action, the following mnemonic was devised:

Prevent/Terminate – DPF-Necessity-Safety: DR.BARKS  

Deadly Physical Force
Robbery
Burglary
Arson
Rape
Kidnapping
Sodomy

Deadly physical force is NEVER authorized for larceny or criminal mischief regardless of the value of the property.

 You may also use deadly physical force to arrest or prevent escape from custody when:

1.      You are directed to by a police or peace officer unless you know deadly physical force is not authorized; or

2.      If the following crimes have IN FACT taken place AND only during the suspects immediate flight from the crime scene:

1. Murder

2. Robbery in the first degree ( The suspect inflicted serious physical injury upon the victim, displayed a deadly weapon, a dangerous instrument, or a gun)

3. Manslaughter in the first degree (intentional manslaughter)

4. Rape (forcible)

5. Sodomy (forcible)

Arrest/Prevent Escape – DPF- Necessity – Safety: MR.MRS

Murder
Robbery
Manslaughter
Rape
Sodomy

3. During the arrest/prevent escape phase you may also use deadly physical force to defend yourself or a third party from what you have RCTB is  the use of deadly physical force.

            In addition to telling us when we are authorized to use physical force, the New York State Penal Law also tells us one occasion when we are mandated to use physical force. If a police officer or peace officer requests or commands a private citizen to assist him in effecting an arrest or in preventing the commission of any offense by another person, that person is obligated, under section 195.10 of the Penal Law, to assist that officer. If the citizen unreasonably fails or refuses to aid an officer requesting his assistance, he can be charged with a class “B” misdemeanor and face up to 6 months in jail and a $500.00 fine. 

USE OF PHYSICAL FORCE: WHEN PROHIBITED

            Besides knowing when you are authorized and when you are required to use physical force, you also need to know when you cannot use physical force. As stated above, you are not allowed to use physical force to act as the initial aggressor, nor can use physical force if it would endanger innocent bystanders. You are also prohibited from using physical force to engage in mutually agreed upon combat, except for purposes such as in sparring practice or kumite in a recognized tournament. One especially notable circumstance in which the use of physical force is NEVER acceptable would be to use force to prevent a police officer or peace from effecting an arrest. Regardless of whether or not the arrest is lawful, a person is never authorized to use any degree of physical force to resist the arrest of himself or a third person. If the arrest is unlawful, then that person may pursue civil action against the arresting officer. If that person resists, however, he would be charged with a class “A” misdemeanor and could be punished with up to 1 year in jail and a $1000.00 fine.

            While a true martial artist will avoid a physical confrontation if at all possible, we must recognize that we live in violent times. Although we all hope to never have to use our training in an actual self-defense situation, we should always train as though it will happen tomorrow. But you must also remember that the actual physical techniques are only a fraction of the skills you need to defend yourself. You need to master your emotions, and you need to understand and analyze the situation as it unfolds, not only from a tactical and strategic standpoint, but from a legal standpoint as well. It would behoove you, as a responsible martial artist, to understand the laws governing use of force wherever you live, work, or recreate. By combining your martial arts training with an understanding of your legal limitations, you will be to defend your physical well-being, as well as your legal well-being.